Lin Bin Weng v. Lynch ( 2016 )

15-1196
Weng v. Lynch
BIA
Wright, IJ
A201 035 132
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for
2 the Second Circuit, held at the Thurgood Marshall United States
3 Courthouse, 40 Foley Square, in the City of New York, on the
4 22nd day of April,two thousand sixteen.
5
6 PRESENT:
7 ROBERT A. KATZMANN,
8 Chief Judge,
9 PETER W. HALL,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12 _____________________________________
13
14 LIN BIN WENG, AKA LINBIN WENG,
15 Petitioner,
16
17 v. 15-1196
18 NAC
19 LORETTA E. LYNCH, UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Lewis G. Hu, New York, New York.
25
26 FOR RESPONDENT: Benjamin C. Mizer, Deputy Assistant
27 Attorney General; Francis Fraser,
28 Senior Litigation Counsel; Kate D.
29 Balaban, Trial Attorney, Office of
30 Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review is
4 DENIED.
5 Petitioner Lin Bin Weng, a native and citizen of China,
6 seeks review of a March 25, 2015 decision of the BIA affirming
7 a December 17, 2012 decision of an Immigration Judge (“IJ”)
8 denying Weng‟s application for asylum, withholding of removal,
9 and relief under the Convention Against Torture (“CAT”). In
10 re Lin Bin Weng, No. A201 035 132 (B.I.A. Mar. 25, 2015), aff’g
11 No. A201 035 132 (Immig. Ct. N.Y.C. Dec. 17, 2012). We assume
12 the parties‟ familiarity with the underlying facts and
13 procedural history in this case.
14 In the circumstances of this case, we consider both the IJ‟s
15 and the BIA‟s opinions “for the sake of completeness.”
16 Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.
17 2006). The applicable standards of review are well
18 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
19 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
20 Under the REAL ID Act of 2005, the agency may, in light of
21 “the totality of the circumstances,” base an adverse
22 credibility determination on an asylum applicant‟s “demeanor,
23 candor, or responsiveness,” the plausibility of her account,
2
1 and inconsistencies in her statements, “without regard to
2 whether” those inconsistencies go “to the heart of the
3 applicant‟s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin
4 v. Mukasey, 534 F.3d 162, 165 (2d Cir. 2008). Under the
5 “substantial evidence” standard of review, “we defer . . . to
6 an IJ‟s credibility determination unless, from the totality of
7 the circumstances, it is plain that no reasonable fact-finder
8 could make such an adverse credibility ruling.” Xiu Xia Lin,
9 534 F.3d at 167.
10 The agency‟s adverse credibility determination against
11 Weng is sound. The agency justifiably relied on
12 inconsistencies between what she said at an interview with
13 border patrol agents and her asylum application. “We exercise
14 caution when reviewing statements made within the context of
15 airport interviews, recognizing that because such interviews
16 „may be perceived . . . as coercive or threatening,‟ aliens may
17 „not be entirely forthcoming in the initial interview.‟”
18 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 396 (2d Cir. 2005)
19 (quoting Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir.
20 2004)); see also Ming Zhang v. Holder, 585 F.3d 715, 724-25 (2d
21 Cir. 2009) (requiring close scrutiny of credible fear
22 interviews, but deeming reliable one that was typewritten,
23 conducted with an interpreter, demonstrated that the
3
1 interviewee understood the questions).
2 Here, the agency was entitled to credit Weng‟s border
3 patrol interview. Weng signed each page of the interview
4 transcript. The questions, posed in Weng‟s native Mandarin,
5 were open-ended and “designed to elicit the details of an asylum
6 claim,” Ramsameachire, 357 F.3d at 180 (internal quotation
7 marks omitted). They include, “Do you fear torture,
8 persecution, or harm from the Chinese Government if you are
9 removed to China?” At the merits hearing, Weng confirmed that
10 she understood the questions asked during the border interview.
11 In her brief, Weng argues that she cannot be blamed for omitting
12 mention of the forced abortion because the officer did not ask
13 “why or on what basis did she apply for political asylum.” But
14 that argument is merely semantic; the officer asked a more
15 open-ended question regarding why she feared harm from the
16 Chinese government.
17 During the interview, Weng failed to mention that family
18 planning officials forcibly aborted her pregnancy. Instead,
19 she asserted religious persecution as grounds for her asylum
20 claim, grounds that she dropped in her asylum application. In
21 finding that Weng was not credible, the IJ was entitled to “rely
22 on the commonsense observation that it is inconsistent for a
23 petitioner to respond to the same question about the nature of
4
1 his asylum claim with two entirely different responses.”
2 Yun-Zui Guan, 432 F.3d at 398. Moreover, for the purpose of
3 assessing credibility, an omission is the functional equivalent
4 of an inconsistency. Xiu Xia Lin, 534 F.3d at 166 n.3.
5 Weng‟s explanations for having omitted mention of the
6 forced abortion varied: first, she said that “there were many
7 people waiting to be questioned,” and that she described the
8 incident with the neighbor because it was more recent. She said
9 she “did not get a chance to mention” the abortion. She also
10 said (as transcribed) that in her “subconscious I don‟t to
11 mention that” because she does not “like to mention the abortion
12 incident to other people.” Some of these explanations may be
13 plausible; but none would compel a reasonable adjudicator to
14 credit it. Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir. 2005)
15 (stating that the agency is not required to credit an
16 explanation that is merely plausible). When the interviewer
17 asked whether she had anything else to say, Weng responded,
18 “No.”
19 Weng argues that the IJ misinterpreted her explanations.
20 The IJ professed to be confused by Weng‟s statement that she
21 did not mention the abortion due to her “self-conscience.” The
22 transcript says “subconscious.” In her brief, Weng explains
23 that she felt “self-conscious” about discussing the abortion
5
1 in front of other people, and argues that the IJ should have
2 known that there was a translation error. But the IJ was not
3 obligated to draw that inference. “Where there are two
4 permissible views of the evidence, the factfinder‟s choice
5 between them cannot be clearly erroneous.” Siewe v. Gonzales,
6 480 F.3d 160, 167 (2d Cir. 2007) (quoting Anderson v. Bessemer
7 City, 470 U.S. 564, 574 (1985)). In any event, confusion over
8 Weng‟s phrasing was not the only basis for the IJ‟s rejection
9 of Weng‟s explanation: as the IJ noted, Weng‟s explanations
10 varied each time she was questioned about the omission.
11 The IJ also cited an inconsistency between Weng‟s border
12 patrol interview and application. At the interview, Weng
13 alleged that she feared persecution “because of my religion.”
14 Her asylum application said nothing about religion, and at her
15 merits hearing she disclaimed any problems arising from her
16 religion. Absent from Weng‟s brief is any argument about this
17 inconsistency. The agency reasonably relied on it in finding
18 her not to be credible. Yun-Zui Guan, 432 F.3d at 398.
19 Given the omission from Weng‟s border patrol interview and
20 the inconsistencies between it and her asylum application, the
21 totality of the circumstances supports the agency‟s adverse
22 credibility determination. Weng‟s applications for asylum,
23 withholding of removal, and CAT relief were based on the same
6
1 factual predicate, and so the adverse credibility determination
2 is dispositive as to all three. See Paul v. Gonzales, 444 F.3d
3 148, 156-57 (2d Cir. 2006).
4 For the foregoing reasons, the petition for review is
5 DENIED. As we have completed our review, any stay of removal
6 that the Court previously granted in this petition is VACATED,
7 and any pending motion for a stay of removal in this petition
8 is DISMISSED as moot. Any pending request for oral argument
9 in this petition is DENIED in accordance with Federal Rule of
10 Appellate Procedure 34(a)(2), and Second Circuit Local Rule
11 34.1(b).
12 FOR THE COURT:
13 Catherine O=Hagan Wolfe, Clerk
7